WRIGHT v. II LLC (2024)

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about February 2, 2023, which denied the motion of defendant Portia Properties II LLC (Portia) to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff's amended complaint stated a cognizable cause of action against Portia sounding in negligence by alleging that Portia owned the property located at the property line where plaintiff's accident occurred;  that it either had knowledge of the dangerous sidewalk condition or allowed it to exist for a long period of time prior to plaintiff's accident;  and that plaintiff sustained serious and permanent injuries as a result of Portia's negligence (see Mejia v. New York City Tr. Auth., 291 A.D.2d 225, 226, 737 N.Y.S.2d 350 [1st Dept. 2002];  see also Administrative Code of City of N.Y. § 7–210[a], [b]).

Portia's managing agent's affidavit in support of its pre-answer motion to dismiss does not constitute documentary evidence under CPLR 3211(a)(1) that conclusively established a defense to plaintiff's amended complaint (see Correa v. Orient–Express Hotels, Inc., 84 A.D.3d 651, 651, 924 N.Y.S.2d 336 [1st Dept. 2011];  Celentano v. Boo Realty, LLC, 160 A.D.3d 576, 577, 76 N.Y.S.3d 130 [1st Dept. 2018];  Flowers v. 73rd Townhouse LLC, 99 A.D.3d 431, 431, 951 N.Y.S.2d 393 [1st Dept. 2012]).  Moreover, while the managing agent averred that he did not personally receive complaints of the adjacent sidewalk's condition and that Portia was not responsible for sidewalk maintenance and repair, he failed to mention whether the company had records of either complaints or work performed on the sidewalk.  The one document Portia submitted, its lease with its tenant, did not refute plaintiff's claims, as a landowner's duty for the adjacent sidewalk is nondelegable (see Administrative Code § 7–210;  see also Xiang Fu He v. Troon Mgt., Inc., 34 N.Y.3d 167, 174, 114 N.Y.S.3d 14, 137 N.E.3d 469 [2019]).

As further discovery was necessary to resolve existing factual questions, most notably the precise incident location and the party responsible for its repair and maintenance, Portia's motion to dismiss was premature.